Last week, we read about a decision by the Federal Prosecutor General in Germany not to pursue criminal proceedings for the death of a German national as a result of a CIA drone strike in Pakistan. One of the important issues addressed in the decision was the US’s characterization of the war against al-Qaeda and associated forces. The Prosecutor concluded that two non-international armed conflicts (NIACs) were occurring in parallel, and that this determination was limited to the Federally Administered Tribal Areas (FATA) in Pakistan. The Prosecutor expressly rejected the “war on terror” notion that the conflict extends to any counterterrorism operation without any territorial limitation:
[S]uch a blanket justification for acts of war contravenes the underlying spirit of international humanitarian law, namely to place the maximum possible constraints on war per se, as well as on the methods by which it is waged and the populations which it impacts.
The question of how to determine a NIAC’s geographic scope has been the subject of debate for many years now, with experts offering a wide range of views on how to delineate it. Below is a brief survey of the spectrum of views.
First, there is growing recognition that a NIAC can extend to the territory of a State whose forces are not necessarily involved in the armed conflict. The most typical scenario is the “spillover” when government forces are pursuing an organized armed group from their territory to that of a neighboring country. Even the German Federal Prosecutor General recognized a spillover into Pakistan of the conflict between the Afghan Taliban and affiliated groups on the one hand and the government of Afghanistan and NATO-led security forces on the other. As Marco Sassòli has explained, if “conflicts opposing states and organized armed groups and spreading over the territory of several states were not ‘non-international armed conflicts’, there would be a gap in protection, which could not be explained by states’ concerns about their sovereignty.”
As usefully summarized by the ICRC in 2011, other scenarios in which NIACs extend beyond the territory of a State include: States or multinational forces fighting alongside another government’s forces against one or more organized armed groups on that government’s territory (e.g., NATO forces in Afghanistan); organized armed groups fighting each other across contiguous State borders; and the armed forces of a State engaging in cross-border hostilities against an organized armed group operating in a neighboring country without that country’s control or support (and, as with a “spillover,” if the neighboring country does not consent to the intervening State’s use of force, this can be considered to trigger an international armed conflict between the two countries, in parallel to the NIAC). In light of such scenarios, it has been suggested that “the territorial aspect is not a constitutive element of the notion of NIAC, which is distinguished from [international armed conflict] by the nature or the quality of the parties involved rather than by its limited territorial scope.”
With respect to the purported transnational “war on terror” against al-Qaeda and associated forces across many countries, the US Justice Department expressed the administration’s legal position in a white paper made public in 2013 (emphasis added):
[T]he United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities. … There is little judicial or other authoritative precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict.
But, as seen in the German decision, there is disagreement on the US’s characterization, and debate persists on how to properly define the geographical scope of a NIAC, with a number of legal experts feeding the debate on this question. (The excerpts below are all premised on the principle that, for a situation of violence to qualify as a NIAC, it must meet a certain threshold of intensity and the armed group(s) involved must have a minimum level of organization.)
In general support of a potentially wide geographic scope, Mike Schmitt has written (emphasis added):
[I]t is not the intensity of individual operations or the locus of hostilities that matter when determining whether IHL is applicable in a certain area. Rather, the existence of a NIAC in a location, and therefore the applicability of IHL to operations occurring there, depend on 1) the involvement of qualifying parties, and 2) sufficient intensity with respect to the conflict as a whole. Neither ongoing hostilities with a nexus to the conflict at the specific location in question nor proximity to the borders of the State involved in the NIAC constitute conditions precedent to IHL applicability.
Similarly, Noam Lubell has acknowledged that an armed conflict may exist across many borders (emphasis added):
The threshold of violence and the identity of the party to the conflict are thereby linked. If numerous incidents round the world classified as terrorism could be attributed to the same entity then one could argue that the threshold for conflict has been crossed. If, however, these incidents are perpetrated by separate groups with no unified and organized command and control structure it becomes difficult to add them all up together as evidence of an existing conflict.
Adding some nuance to the idea of such a wide territorial scope, Nils Melzer submits that a “nexus” must exist between the hostile acts and the armed conflict (emphasis added):
Once the objective criteria for the existence of an armed conflict are met, the applicability of humanitarian law is not territorially delimited but governs the relations between the belligerents irrespective of geographical location. In the absence of express territorial limitations, however, humanitarian law applies wherever belligerent confrontations occur, including international air space, the high seas, cyberspace and, indeed, the territory of third States, whether hostile, cobelligerent, occupied or neutral. What is decisive is not where hostile acts occur but whether, by their nexus to an armed conflict, they actually do represent “acts of war”. Therefore, any drone attack or other use of robotic weapons for reasons related to an armed conflict is necessarily governed by humanitarian law, regardless of territorial considerations.
Claus Kress, however, has proposed a stricter test (emphasis added):
It is hard to see how one can … hold that the mere fact that some members of the armed forces of the non-State party are present on the territory of a third State could trigger the geographical extension of the armed conflict to the territory of that State as well. Again, such an extension can only be envisaged if the non-State party has established an actual (quasi-)military infrastructure on the territory of the third State’s soil that would enable the non-State party to carry out intensive armed violence also from there. This approach to defining the geographical limits of the concept of ‘transnational’ non-international armed conflict … corresponds with the line the great majority of States have taken so far as regards assertions that there is a “global armed conflict between the US and Al Quaeda”.
In rejecting the idea of a global “war on terror,” Marko Milanovic has argued that “the existing legal framework does not seem to allow for a construction as amorphous as a planet-wide NIAC, particularly one in which a loose terrorist network such as Al Qaeda is treated as a single organizational entity and belligerent party.”
Along these lines, the ICRC has written (emphasis added):
[T]he ICRC does not share the view that a conflict of global dimensions is or has been taking place. … [T]he ICRC has taken a case by case approach to legally analyzing and classifying the various situations of violence that have occurred in the fight against terrorism. Some situations have been classified as an IAC, other contexts have been deemed to be NIACs, while various acts of terrorism taking place in the world have been assessed as being outside any armed conflict.
ICRC legal advisor Jelena Pejic has added:
With the exception of the United States, State practice and opinio juris do not seem to have accepted this legal approach and the great majority of States do not appear to have endorsed the notion of a “global battlefield”. In addition, it is disturbing, as a practical matter, to envisage the potential ramifications of the territorially unlimited applicability of IHL if other States around the world involved in a NIAC were to likewise rely on the concept of a “global battlefield”.
The debate over the geographic scope of NIACs and the consequent application of IHL is far from resolved and is not about to wane. As explained by Defense Department General Counsel Stephen Preston in April, the groups and individuals against which the US military is taking action, including associated forces, are: “al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) in Yemen; and individuals who are part of al-Qa’ida in Somalia and Libya. In addition, over the past year, we have conducted military operations under the 2001 AUMF against the Nusrah Front and, specifically, those members of al-Qa’ida referred to as the Khorasan Group in Syria. We have also resumed such operations against the group we fought in Iraq when it was known as al-Qa’ida in Iraq, which is now known as ISIL.” Preston made it clear that the “United States’ armed conflict against al-Qa’ida and associated forces in Afghanistan and elsewhere also continues.”